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Because petitioner has failed to plead that any addition to
tax should be reduced on account of prepayment credits, or that
any fraud addition to tax should be reduced on account of some
part of the underpayment’s not being due to fraud, or that any
addition to tax should be reduced on account of any matter other
than the amount of the underpayment, there are no genuine issues
as to material facts affecting the amounts of any additions to
tax.
(3) Judgment as a matter of law
Respondent is entitled to judgment as a matter of law with
respect to the deficiencies and the additions to tax under
section 6654.
As to the fraud additions to tax, in order to carry the
burden of proof for a year, respondent must prove two elements,
as follows: (1) That petitioner has an underpayment of tax for
that year, and (2) that some part of that underpayment is due to
fraud. Sec. 7454(a); Rule 142(b); e.g., Carter v. Campbell, 264
F.2d 930, 936 (5th Cir. 1959); Stone v. Commissioner, 56 T.C.
213, 220 (1971); Otsuki v. Commissioner, 53 T.C. 96, 105, 106
(1969). Each of these elements must be proven by clear and
convincing evidence. DiLeo v. Commissioner, 96 T.C. 858, 873
(1991), affd. 959 F.2d 16 (2d Cir. 1992); Parks v. Commissioner,
94 T.C. 654, 663-664 (1990); Hebrank v. Commissioner, 81 T.C.
640, 642 (1983).
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